The Word Transformative

On 18 May 2023 the Supreme Court of the United States decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508. The vote was 7–2. Sotomayor wrote for the Court; Kagan dissented, joined by the Chief Justice.

Almost every account of it you will read is wrong in the same way, so here is what the Court actually said, in its own words:

Only that last use, however, AWF's commercial licensing of Orange Prince to Condé Nast, is alleged to be infringing. We limit our analysis accordingly. In particular, the Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works.

The Court did not rule that Warhol's silkscreens are infringing. It ruled on one licensing transaction, under one of the four fair-use factors, in 2016.

Utagawa Hiroshige, Sudden Shower over Shin-Ōhashi Bridge and Atake, from One Hundred Famous Views of Edo, 1857. Woodblock print. The Metropolitan Museum of Art, JP2522. Open Access, CC0.

Five arguments about copying something on purpose

1. What was actually at stake

Lynn Goldsmith photographed Prince in 1981 on commission from Newsweek. In 1984 her agency licensed one frame to Vanity Fair as an "artist reference for an illustration," for four hundred dollars, on terms that read in full: to be published in the November 1984 issue, one time full page and one time under a quarter page, no other usage right granted. She was credited for the source photograph.

Warhol made the illustration, and then fifteen more works from the same photograph. Goldsmith did not know.

In 2016, after Prince died, the Warhol Foundation licensed Orange Prince to Condé Nast for ten thousand dollars for a commemorative cover. Goldsmith got nothing and no credit, and found out by seeing it on a newsstand.

That is the whole case. A magazine cover of Prince, licensed commercially, replacing a magazine cover of Prince that could have been licensed commercially.

2. The sentence that does the work

If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.

Sotomayor reaches for Campbell v. Acuff-Rose — the 2 Live Crew case — not as a licence but as a limit. 2 Live Crew transformed Orbison's song, she writes, "But that did not end the Court's analysis of the first fair use factor." And she borrows Campbell's distinction: parody has to mimic its target to make its point, whereas satire "can stand on its own two feet and so requires justification for the very act of borrowing."

3. Kagan's chain of pictures

Kagan's dissent opens by pointing out that this same Court had recently used Warhol as the model example of transformative use, and adds: "That Court would have told this one to go back to school."

Her argument is a genealogy. Giorgione's Sleeping Venus, about 1510. Titian's Venus of Urbino, 1538. Manet's Olympia, 1863. Each one a reworking of the last, each one what the Renaissance would have called imitatio. Then she turns on the majority's framing:

The majority would presumably describe these Renaissance canvases as just "two portraits of reclining nudes painted to sell to patrons." But wouldn't that miss something — indeed, everything?

She closes: "It will make our world poorer."

Sotomayor answers directly, that the decision will not "snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers."

4. Van Gogh, who squared up a print and enlarged it

Vincent van Gogh, Bridge in the Rain (after Hiroshige), Paris, October–November 1887. Oil on canvas, 73.3 × 53.8 cm. Van Gogh Museum, Amsterdam (Vincent van Gogh Foundation), s0114V1962. Public domain, via Wikimedia Commons.

In the winter of 1886–87 Vincent van Gogh bought six hundred and sixty Japanese woodcuts from the dealer Siegfried Bing in Paris. He picked them out of an attic containing, by his own estimate, ten thousand prints, and he bought cheap, unfashionable ones because he intended to deal in them. When that failed he started studying them.

In autumn 1887 he made two paintings directly after Hiroshige. He traced them, enlarged them onto canvas, and changed things. He dropped Hiroshige's black, grey and white entirely and used only the three primaries and three secondaries. He replaced the black of a tree trunk with red and blue. His canvas was a standard French size and the wrong proportion, so he painted decorative borders and filled them with Japanese characters copied out of other prints in his collection.

The Van Gogh Museum publishes no translation of those characters, and neither should anyone else. They are real characters, lifted from title cartouches, reassembled as ornament.

He titled the paintings after Hiroshige and the museum still does.

5. The tariff, then and now

Table 1. The difference between 1887 and 2023 is not the amount of transformation. It is whether the two uses were competing for the same sale.

Hogarth, incidentally, is the reason any of this is a legal question at all. He lobbied for the Engravers' Copyright Act of 1735 because his own Harlot's Progress was being pirated before he could sell it, and that Act is the first statute anywhere to give an artist rights in his own images. Every argument in this piece runs downstream of a printmaker who was annoyed about copies.

What I take from it

The useful reading of Goldsmith is not that transformation stopped mattering. It is that the Court moved the question from how different does it look to what is it for.

That is a harder question and, I think, a more honest one. Van Gogh's Hiroshige does not compete with Hiroshige's Hiroshige; there was no market it could take. A magazine cover of Prince competes with a magazine cover of Prince, however it is coloured.

Whether that is the right line to draw is a real argument, and Kagan's dissent is the best statement of the other side. But it is a different argument from the one most people think the case was about.